Clarity about ‘hate speech’

JUDGMENT: SUPREME COURT OF APPEAL

Wilmien Wicomb

The Supreme Court of Appeal (SCA) this week delivered a judgment that provided much needed clarity about the meaning of “hate speech” as prohibited in the Equality Act. The ruling follows a dispute between the SA Jewish Board of Deputies (Sajbod) and Cosatu member Bongani Masuku, which arose in February and March 2009, and was prompted by the military action against protesters in the Gaza Strip by the Israeli government at the end of 2008. The conflict resulted in more than 700 deaths.

Sajbod and the South African Zionist Federation (SAZF) supported the actions of the Israeli Army. But notably, hundreds of South African Jews distanced themselves from this show of support.

At the time, Masuku was a high-ranking Cosatu official. The trade union condemned the actions of the Israeli army, ran a campaign to that effect, and even held a protest march to the headquarters of Sajbod and SAZF alongside the Palestine Solidarity Committee.

Their aim was to put pressure on the SA government to support Palestinian people in the midst of the conflict.

During this campaign, Masuku wrote on an online blog: “We struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler! We must not apologise, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine. We must target them, expose them and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity”.

A few weeks later, at a gathering at Wits, Masuku made further comments to that effect. Sajbod laid a complaint of hate speech with the Human Rights Commission, who found in their favour and referred the matter to the Equality Court who, in turn, found the statements to be hate speech in terms of the Equality Act. Masuku was ordered to apologise unconditionally “to the Jewish community”.

Section 16 of the constitution excludes from freedom of expression advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. To be an unprotected form of speech, the statements must be aimed at a group based on their race, ethnicity, gender or religion and must incite harm.

As the SCA pointed out, the Equality Act, on the face of it, appears to have a broader definition of hate speech. Apart from significantly broadening the groups that are protected from hateful statements, the Act prohibits speech that could reasonably be understood not only to “be harmful or incite harm or promote or propagate hatred”, but also “to be hurtful”.

This is cause for concern, the SCA said this week, precisely because the right to freedom of expression is fundamental to a democracy and should not lightly be limited.

It referred to a Constitutional Court statement of 2016 that involved Fees Must Fall student activists. “A court should not be hasty to conclude that because language is angry in tone or conveys hostility, it is therefore to be characterised as hate speech. Even if it has overtones of race and ethnicity,” the Constitutional Court wrote.

The Equality Court said, because Masuku aimed some of his comments at “Zionists”, and because most people who are likely to support Zionism, are Jewish, the statements were in fact directed at people of the Jewish religion or ethnicity.

Masuku said this was not the case: his statements were directed at the State of Israel. The court found that Masuku’s speech never became anything more than a political statement in support of Palestine. While it may have been offensive and hurtful, it did not incite harm.

“The fact that a particular expression may be hurtful of people’s feelings, or wounding, distasteful, politically inflammatory or downright offensive, does not exclude it from protection,” the court said. – Republished from Groundup.org.za

We must target them.